Next year will mark two decades of ushering in a new democracy in South Africa, and 18 years after a new constitution was established for the new dispensation. Yet a majority of South Africans continue to be unaware of their constitutional rights and/or how these rights apply to the persistent inequalities surrounding them. The legacy of Apartheid endures: law is still viewed by many as a means of control, and not of development and transformation. Moreover, South African society is plagued by a culture of violence that has continued to reproduce itself and now is seen as legitimate. The general lack of an awareness of rights among South Africans, coupled with this normalised resort to violence in a society beleaguered by the highest inequality rate in the world, unbridled corporate power, gross corruption, growing service delivery protests, renewed ethnic and racial conflict, populist politics, and attacks on the rule of law and judicial independence together underscore the need for robust and widely accessible constitutional education and training.
Despite this need, a wide gap persists in fulfilling this function, though such education and training squarely falls within the respective mandates of the Department of Basic Education (DBE) and the Department of Justice and Constitutional Development (DoJCD). This is not to suggest these departments are not discharging their responsibilities at all; indeed, they are involved in some important initiatives. However, existing programmes fail to reach most South Africans, and for this reason, civil society and community-based organisations continue to fill this gap.
The Constitutional Literacy and Service Initiative (CLASI), launched in 2011, attempts to build a foundation for a popular culture of active citizenship and engagement with the ideals contained in the Constitution. In doing so, CLASI stands on the shoulders of organisations such as Black Sash, Street Law, and, of course, hundreds of community-based advice offices, who have long endeavoured to provide access to justice, including rights-based literacy programmes, to communities around South Africa. CLASI provides ongoing training to law students (“teaching fellows”) from five law schools to facilitate workshops, classes, public debates and moot competitions in under-resourced schools and community centres around the Western Cape, Eastern Cape and Gauteng. Our hope is to foster conversations that will help to restore agency and human dignity to people who have long been silenced, to build bridges across difference, and where there is conflict, to promote its non-violent resolution.
Incorporating contemporary constitutional debates in society through moot court competitions (simulated court hearings where participants play role of lawyers and present their case) and through art as a medium, the CLASI curriculum explores South African history and constitutional transformation, both in terms of political and social transformation. Using this curriculum as a base, CLASI encourages the development of critical analysis, reading, writing, and speaking skills, as well as dialogue, as an alternative to conflict. In this way, both the learners and the teaching fellows are exposed to dynamic, inter-disciplinary, and hands-on learning.
Institutional Obstacles to the Realistion of the Right to Constitutional Literacy
As discussed last week, the right to constitutional literacy at least consists of access to constitutions, access to educational and training programmes, and access to dynamic teaching pedagogies. Through its work, CLASI has identified a number of institutional obstacles to the realisation of this right.
First, it has been incredibly difficult to access constitutional booklets. In order to access the booklets, we were required to make a formal request to the DoJCD stating our purpose. Months later, we received approximately 100 booklets, which is sorely insufficient given the number of individuals with whom we engage throughout the year. As a result, workshop participants have to share booklets. CLASI has also received requests for booklets from several community advice offices and a trainer of Life Orientation (LO) teachers. It defies common sense that those charged with teaching and facilitating do not have ready access to constitutional booklets.
Second, the new CAPS (Curriculum and Assessment Policy Statement) LO curriculum for Grades 10-12 prescribes a maximum of 18 hours of Democracy and Human Rights (DHR) learning over three years – 7 hours each in Grades 10 and 11, and 4 hours in Grade 12. This time allocation is negligible, insulting even, in respect of conducting a meaningful engagement with constitutional education. Moreover, the prescribed curriculum itself is scattered and incoherent, making it virtually impossible to incrementally build the constitutional literacy of learners. Within the LO course, which is slotted for a mere two hours per week, the Democracy and Human Rights module competes for space with instruction around life skills, career choices, physical education, study skills, social and environmental responsibility, and something referred to as “development of the self in society.”
LO thus becomes little more than a haphazardly constructed course filled with odds and ends that do not fit elsewhere in the curriculum. It is no wonder then that Professor Jonathan Jansen refers to LO as a “dummy subject” and advises parents to “tell your child not to take life orientation seriously…because there is no positive relationship between high marks in academic subjects and this thing called life orientation.” To be clear, while Jansen’s remarks are understandable, they are incomplete. Democracy and Human Rights has all the potential to be a rigorous subject on par with any other course in the high school curriculum, but it must be given adequate space and value in the curriculum.
Third, the DBE and National Development Plan (NDP)’s emphasis on the so-called Bill of Responsibilities is misplaced and diverts attention and resources from the real issues. The Bill interprets several constitutional rights in a manner that is fundamentally at odds with the Constitution, and is a feeble attempt to justify a dilution of government responsibility for the realisation of constitutional rights. Promotion of the Bill of Responsibilities should not be conflated with promotion of the right to constitutional literacy.
Fourth, time and time again, we hear that teachers who rarely have trained in LO are often assigned to teach LO as a ‘rite of passage’ within a school. Once assigned the subject, they are not properly trained to deliver the DHR curriculum, which is why CLASI started providing LO teacher training for the DHR module. The DBE must develop rigorous and ongoing training programmes for LO teachers who cannot properly teach a constitutional curriculum if they do not understand it.
Fifth, we have encountered similar under-capacitation of community-based paralegals (CBPs), who, despite providing critically important legal services for communities, receive little state support and are not provided adequate training in the area of constitutional education. Perhaps if the state recognised the critical role CBPs play, as outlined in the Kampala Declaration on Community Paralegals, CBPs could receive further support and training in this regard. A first step towards this would be for the DoJCD to include and regulate CBPs as legal service providers in the long-awaited Legal Practice Bill (LPB).
Sixth, most CLASI teaching fellows participate in this programme on a voluntary basis because their law schools do not offer academic credit for their involvement. At one law school, students do receive credit towards their community service requirement, but it does not credit ongoing facilitation training, debriefing, and self-reflection. As a result, it is difficult to incentivise law students to maintain a robust commitment throughout the year, whilst they simultaneously juggle full course loads. And yet, the fellows’ legal education is enriched by their involvement in such programmes, as they gain a deeper understanding of law in context. The DoJCD could fix this by allowing law students to participate in such constitutional education programmes as part of their mandatory community service, as proposed in the LPB.
The Right to Constitutional Literacy as a Practice of Freedom
It is worth re-emphasising here the value of constitutional literacy as a fundamental human right in and of itself, intrinsically valuable to the realisation of human dignity. In a report issued this year, UN Special Rapporteur Magdalena Sepulveda Carmona declared that there is a right of people living in poverty to fully participate in society and its decision-making processes and that the lack of such participation is both a “defining feature and cause of poverty, rather than just its consequence.” Participation undertaken with a rights foundation can encourage people “to be active agents in their own destiny; thus  fundamentally important to reclaiming dignity.” One CLASI Teaching Fellow described the constitutional literacy process as “planting a seed.” But, as with all seeds, water and care are required for the seed to germinate.
Who is meant to water and care for these seeds, and how? The UN Declaration is unequivocal that the DBE and DoJCD have critical roles to play, working together with the Human Rights Commission and civil society. All stakeholders must be willing to enter into an ongoing discussion about how to coordinate and augment resources to develop and deliver constitutional education programmes, how to properly design curricula for education and training programmes which ensure rigour and the meaningful participation of beneficiaries, and how to capacitate facilitators and educators with appropriate teaching pedagogies to make the learning effective.
In particular, teaching pedagogies must come under close scrutiny and development. The right to constitutional literacy must be at least as much about the process of constitutional literacy as it is about the substance of constitutional literacy. It is not enough to read out the Preamble to the Constitution in classrooms as the NDP proposes, for this merely promotes the Freirian “banking” concept of education in which the student is viewed as an empty account into which the teacher deposits knowledge. Indeed, what is needed is a critical teaching pedagogy in which the act of education itself is seen as a political act delivered through dialogic learning – an intense dialogue between theory and the lived realities of the participants. Techniques such as debating and moot courts allow for participants to think critically and enhance their ability to analyse and confront structures of oppression and power relations. This training model allows facilitators an invaluable experiential learning opportunity to gain a deeper, more nuanced perspective on the Constitution in context.
Twenty years into our democracy, the time is long overdue to regard the Constitution not just as a tool for the privileged few to eloquently argue in the Constitutional Court, but as a seed that properly nurtured can lead to the reclaiming of human dignity and reduction in inequality for all people living in South Africa. As Freire mused.
“Education either functions as an instrument which is used to facilitate integration of the younger generation into the logic of the present system and bring about conformity or it becomes the practice of freedom, the means by which men and women deal critically and creatively with reality and discover how to participate in the transformation of their world.”
By coming together to strategise around the realisation of a right to constitutional literacy, we can make great strides towards the unfinished project of transformation in South Africa. DM
Meetali Jain is the Director of the Constitutional Literacy and Service Initiative (CLASI) and a Senior Researcher at the Centre for Applied Legal Studies (CALS). She also lectures part-time at Wits Law School. She served as a judicial law clerk to former Justice Yvonne Mokgoro of the Constitutional Court of South Africa, and has worked with a variety of community-based organizations, in the United States, South Africa and India.
Photo: Rioters throw stones during a protest at the Phomolong informal settlement, outside Pretoria, March 23, 2010. Reuters/Stringer
*The Know Your Constitution campaign is a coalition of civil society organisations united by our common belief in the importance of access to constitutions and constitutional literacy. It includes the Constitutional Literacy and Service Initiative, The Socio-Economic Rights Institute, SECTION27, Constitution Hill Education Project and Afrika Tikkun. We welcome new members. Follow these organisations on Facebook and Twitter and look out for our articles on the pages of the Daily Maverick in weeks to come.
Want to watch Richard Poplak’s audition for SA’s Got Talent?
Who doesn’t? Alas, it was removed by the host site for prolific swearing*... Now that we’ve got your attention, we thought we’d take the opportunity to talk to you about the small matter of book burning and freedom of speech.
Since its release, Pieter-Louis Myburgh’s book Gangster State, has sparked numerous fascist-like behavior from certain members of the public (and the State). There have been planned book burnings, disrupted launches and Ace Magashule has openly called him a liar. And just to say thanks, a R10m defamation suit has been lodged against the author.
Pieter-Louis Myburgh is our latest Scorpio Investigative journalist recruit and we’re not going to let him and his crucial book be silenced. When the Cape Town launch was postponed, Maverick Insider stepped in and relocated it to a secure location so that Pieter-Louis’ revelations could be heard by the public. If we’ve learnt one thing over the past ten years it is this: when anyone tries to infringe on our constitutional rights, we have to fight back. Every day, our journalists are uncovering more details and evidence of State Capture and its various reincarnations. The rot is deep and the threats, like this recent one to freedom of speech, are real. You can support the cause by becoming an Insider and help free the speech that can make a difference.
*No video of Richard Poplak auditioning for SA’s Got Talent actually exists. Unless it does and we don’t know about it please send it through.
Towns near Fukushima are now being plagued by hordes of rampaging radioactive wild boars. Where are Asterix and Obelix when you need them?